A patentability opinion consists in assessing the likelihood of an invention to be patentable by an office (for example the National Institute of Industrial Property (INPI) in France or the European Patent Office in Europe).
Although they are sometimes interpreted differently, the main criteria, apart from a few exceptions, are those set out below:
- Does your invention fall under the exceptions from patentability according to the law? And according to case-law? For example, software is usually not patentable under the European Patent Convention. Nevertheless, under certain circumstances, case-law permits the patenting of certain software.
- Is your invention actually an invention as defined by the law? For example, a scientific discovery is not an invention. However, it is very much possible to protect one or more applications of a discovery.
- Is your invention novel over the prior art? In this regard, we analyse the prior art documents which is provided to us or we conduct a search in order to determine novel elements of your invention, i.e. those which could be patentable.
- Does your invention involve an inventive step? Conversely, would a person skilled in the art have been directed in an obvious manner to obtain the invention? Here too, we use our knowledge of the practice of the various offices and the relevant law and jurisprudence, in order to assess this criterion.
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